ex-AOAN, USN

Current Discharge and Applicant’s Request


Applicant’s Request:     Characterization change to:     
         Narrative Reason change to:     
        
Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20000727 - 20010715     Active: 

Period of Service Under Review:

Date of Current Enlistment: 20010716     Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20050707      Highest Rank/Rate: AOAN
Length of Service: Year(s) Month(s) 22 Day(s)
Education Level:         AFQT: 41
Evaluation Marks:        Performance: 3.0 (3)     Behavior: 3.0 (3)        OTA: 2.89

Awards and Decorations (per DD 214):    

TL Per DD214: 20040730 – 20040819, 20 days; 20040903 – 20040907, 4 days; 20041217 – 20041220, 3 days; 20050120 – 20050125, 5days; 20050504 – 20050506, 2 days; 20050519 – 2005052, 2 days; 20050622 – 20050707, 15 days

NJP:

- 20020827:      Article (Absence without leave; UA from 02 July 30 until 02 August 19.)
         Article (Military property of the United States-sale, loss, damage, destruction, or wrongful disposition; Willfully damage military property by breaking the glass of a fire station on 02 July 27).
         Awarded: Suspended:

- 20050608:      Article (Absence with leave; 5 Specifications)
         Specification 1: Did on or about 0600, 21 April 2005, without authority, absent himself from his unit and did remain so absent until on or about 0915, 21 April 2005.
         Specification 2: Did on or about 0600, 29 April 2005, without authority, absent himself from his unit, and did remain so until on or about 29 April 2005.
         Specification 3: Did on or about 4 May 2005, without authority, absent himself from his unit, and did remain so until on or about 6 May 2005.
         Specification 4: Did on or about 0600, 10 May 2005, without authority, absent himself from his unit, and did remain so until on or about 0726, 10 May 2005.
         Specification 5: Did on or about 0600, 12 May 2005, without authority, absent himself from his unit, and did remain so until on or about 1530, 13 May 2005.
         Awarded: Suspended:

SCM:

SPCM:



CC:

- 20020529:      Offense: Reckless driving
         Sentence: $250.00, 30 days in jail (suspend all but one weekend).

- 20041202:     Offense: 1. Suspended license   
         Offense: 2. Reckless driving    
         Sentence: 1. $106.00 fine and court cost.
         2. $227.00 fine and court cost.

- 20050621:      Offense: 1. Distribution of a controlled substance
         Offense: 2. Conspiracy, 2 counts
         Sentence: In Jail awaiting trial with no bond
         [Extracted from Recommendation for Administrative Separation dated 01 July 2005]


Retention Warning Counseling:

- 20020828:      For Article 86 (Absence without leave), and Article 108 (Military property of the United States-sale, loss, damage, destruction, or wrongful disposition).

- 20021007:      Specifics NFIR. [Extracted from Recommendation for Administrative Separation dated 01 July 2005]

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAR ON TERROROISM EXPEDITIONARY MEDAL”
         “PATTERN OF MISCONDUCT”
        
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:
         DD 214:           Service/Medical Record:           Other Records:  

Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:     
         Health/Medical Records:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.       The Applicant contends that he was arrested 29 days before his EAOS with 61 days of leave on file and he was not court-martial but discharged in absentia.

Decision

Date: 20150205            Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings, for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave; 6 specifications) and Article 108 (Military property of the United States-sale, loss, damage, destruction, or wrongful disposition, 1 specification), and three civilian convictions for (Reckless driving, 2 counts), (Suspended license, 1 count), (Distribution of a controlled substance, 1 count) and (Conspiracy, 2 counts). Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) () . The Applicant contends that he was arrested 29 days before his EAOS with 61 days of leave on file and he was not court-martialed, but discharged in absentia. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.

In accordance with MILPERSMAN Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT, a service member is in violation of a pattern of misconduct if they have two or more nonjudicial punishments (NJP), court-martial, or civil convictions (or combination thereof). The member must also have violated a NAVPERS 1070/613 warning prior to processing. The Applicant had two NJPs, two retention warnings, and three civilian convictions supporting a finding for pattern of misconduct. Furthermore, the Applicant’s records do not support the Applicant’s contention that he was 29 days before his EAOS. The Applicant had several incidents of unauthorized absences that were counted against him as time lost. At the time of the discharge, the Applicant had three years, nine months, and 21 days of service. The Applicant was notified on 23 June 2005 of administrative separation procedures for pattern of misconduct, misconduct due to a civilian offense, and misconduct due to drug abuse. The record shows the Applicant waived his rights to an administrative separation board and was subsequently discharged with an Under Other Than Honorable characterization of service. If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made. During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a pattern of misconduct, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. Relief denied



Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain PATTERN OF MISCONDUCT. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional information.

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn: Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023